Justice Ginsburg on Montana: This is speaking truth to power?

Rick Hasen comments in Slate on Justice Ginsburg’s short statement regarding the Supreme Court’s decision to grant a stay in Western Tradition Partnership v. Bullock, the case in which the Montana Supreme Court held that Citizens United was not applicable to Montana, constitutes “speaking truth to power.

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

Professor Hasen says that Ginsburg is “ready to speak truth to power.” Really?

Justice Ginsburg is a member of the Supreme Court of the United States. She is power. Truth? What truth was there in her little Western Tradition Partnership concurrence? Didn’t she just offer an opinion, slandering both donors and candidates, without any facts at all?

Traditionally, when we say one is speaking truth to power, we think of one taking a courageous stand that will impose on them real personal costs. What courage is there in sheepishly following conventional wisdom on campaign finance, with no examination of the facts, to align oneself with the New York Times and the Washington Post and all the organs of power that will sing your accolades?

And what would Justice Ginsburg’s position do, if adopted? Well, it would increase the power of her employer, the Federal government, and in particular the Congress, the President, and the Federal Election Commission. It would increase the power of her institution, the Supreme Court, to decide who can speak on a case by case basis. And it would decrease the First Amendment freedoms of American citizens.

That’s not speaking truth to power. It’s complacently fostering misinformation and simplistic solutions to the public.